People v. Prado CA2/6 ( 2021 )

Filed 1/20/21 P. v. Prado CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B301480
(Super. Ct. No. PA092370)
Plaintiff and Respondent, (Los Angeles County)
v.
EMILIO PRADO,
Defendant and Appellant.
Emilio Prado appeals a judgment following his conviction
for stalking (Pen.1 Code, § 646.9, subd. (b)) (count 1) and injuring
a cohabitant/girlfriend (§ 273.5, subd. (a)) (counts 2 and 3). The
jury also found true the allegation that Prado was previously
convicted of violating Health and Safety Code section 11352,
subdivision (a), a felony, in 2012; and “pursuant to . . . section
667.5,” subdivision (b) that he “did not remain free of prison or
county jail custody for, a period of five years subsequent to the
All statutory references are to the Penal Code unless
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stated otherwise.
conclusion of said term.” The trial court imposed an aggregate
state prison sentence of seven years, which included a one-year
consecutive sentencing enhancement under section 667.5,
subdivision (b).
We conclude the one-year consecutive sentencing
enhancement under section 667.5, subdivision (b) must be
stricken because of the passage of Senate Bill No. 136. We
modify the judgment by striking the enhancement and order the
trial court to prepare an amended abstract of judgment and send
a certified copy of it to the appropriate authorities. The
judgment, as modified, is affirmed.
FACTS
Y.A. was Prado’s former girlfriend. She had been dating
him for three years. In one incident she and Prado were in a car.
She told him that she did not want to be with him because he was
intoxicated. Prado bashed her head onto the gearshift of a car.
She testified she could not end her relationship with him because
he threatened her and he “wouldn’t let [her] leave him.” He said
he would kill her “if he saw [her] with somebody else.”
In another incident Y.A. refused to let Prado see her
daughter. Prado struck her on her face and body and kicked her.
She suffered injuries to her eyes, forehead, and neck.
Y.A. moved in with her aunt for a short period because she
was “scared that [Prado] was going to come back and do it again.”
When she came back to her home, she noticed “one of the doors
was kicked into” and items from the house were missing.
In November 2018, Y.A. obtained a restraining order
against Prado. He was served with that order. Y.A.
subsequently saw Prado “running out of [her] backyard.” In
another incident she saw Prado again. She took out her phone to
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call 911. Prado knocked the phone out of her hand, picked her up
and carried her to her backyard. He threw her down and ended
up on top of her. She told him he “needs to leave” and “get out of
[her] life.” Prado saw Y.A.’s brother approaching. Prado left.
Y.A. called the police. As a result of Prado’s actions, she had cuts
to her feet and arm.
In December 2018, Prado drove to Y.A.’s home. Y.A. called
911. Prado drove away, but he came back again “later that day.”
Y.A. called the police again. Prado left before the police arrived.
In January 2019, Prado came to her house and pounded on
the door. After that incident, Y.A. saw Prado’s car drive by her
house on a weekly basis.
Around midnight on Valentine’s Day, Prado came to her
home and tapped on her bedroom window. He said “Babe” and he
left gifts. She called the police. She was afraid he was going to
harm her. Prado had previously threatened to take her daughter
away.
After Prado’s arrest, his jury trial, and the jury verdicts
against him, the trial court imposed an aggregate seven-year
prison sentence. It included a one-year consecutive sentencing
enhancement under section 667.5, subdivision (b).
DISCUSSION
Senate Bill No. 136
Prado and the People agree that because of the passage of
Senate Bill No. 136, the one-year consecutive sentencing
enhancement under section 667.5, subdivision (b) must be
stricken.
At the time Prado was sentenced, the trial court was
required to impose a one-year prior prison term enhancement.
(Former § 667.5, subd. (b).) But, in 2019, Senate Bill No. 136 was
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passed. It changed this enhancement so that it would only apply
to prior prison terms for certain sexually violent offenses.
(§ 667.5, subd. (b); People v. Lopez (2019) 42 Cal.App.5th 337,
341.) This change went into effect on January 1, 2020. (People v.
Camba (1996) 50 Cal.App.4th 857, 865.)
The change in the law applies retroactively to this case.
When the Legislature eliminates or reduces the punishment for
an offense or a sentence enhancement, that reduction is applied
retroactively to all judgments on appeal that are not yet final.
(In re Estrada (1965) 63 Cal.2d 740, 745-748.) Consequently,
because Prado’s prior prison term was not for a sexually violent
offense, the section 667.5, subdivision (b) enhancement must now
be stricken. (People v. Gastelum (2020) 45 Cal.App.5th 757, 772.)
Can the Appellate Court Modify the Sentence?
The People contend the sentence can be modified on appeal
without a new sentencing hearing because the trial court has
already exercised its discretion to impose the maximum sentence.
We agree.
In People v. Lopez, supra, 42 Cal.App.5th at page 342, the
court held that “[b]ecause the trial court imposed the maximum
possible sentence, there is no need for the court to again exercise
its sentencing discretion” on a remand for resentencing because
of the Legislature’s elimination of this enhancement. The
appellate court may modify the sentence and strike the one-year
enhancement previously imposed under section 667.5,
subdivision (b). (Lopez, at p. 342.)
Here the trial court imposed the high term of four years for
count 1; it imposed a consecutive one year for count 2 (one-third
the midterm); and it imposed a consecutive one year for count 3
(one-third the midterm). It then imposed a consecutive one year
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for the one-year enhancement (§ 667.5, subd. (b)) for the
aggregate seven-year sentence.
The People note that the trial court “emphasized there
were strong aggravating factors [that] supported the maximum
sentence.” We agree.
The trial court was particularly concerned about Prado’s
continuous pattern of unlawful conduct directed against Y.A. It
said Prado’s stalking of her involved “a continuous course of
conduct of harassment.” There were “two incidents of domestic
violence” he committed against her. He “strangled” her. He
“continues to abuse” her. He violated a “restraining order.” His
conduct involved a “high degree of cruelty, viciousness, and
callousness.” Prado also has “a “very long criminal history.” The
court found he “poses a threat to public safety.” It said there
were “strong aggravating factors.” Given these findings, a
remand for resentencing would only result in the reinstatement
of the maximum possible sentence. Consequently, the judgment
may be modified on appeal without the need for a remand for
resentencing. (People v. Lopez, supra, 42 Cal.App.5th at p. 342.)
DISPOSITION
The judgment is modified as follows: The one-year
enhancement imposed pursuant to section 667.5, subdivision (b)
is stricken. The trial court is directed to prepare an amended
abstract of judgment and to send a certified copy of it to the
appropriate authorities. (People v. Lopez, supra, 42 Cal.App.5th
at pp. 342-343.) As so modified, the judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur: PERREN, J. TANGEMAN, J.
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Daniel B. Feldstern, Judge
Superior Court County of Los Angeles
______________________________
James R. Bostwick, Jr., under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Nima Razfar, Deputy
Attorneys General, for Plaintiff and Respondent.
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